Criminal Possession of a Weapon in The First Degree – NYPL §265.04
Being charged with Criminal Possession of a Weapon in the First Degree carries big consequences including the possibility of a lengthy prison sentence and large fines.
Elements of Criminal Possession
Under New York Penal Law §265.04, which is a class B felony, an individual commits criminal possession of a weapon in the first degree if they:
– Possess any explosive substance with the intent to use it unlawfully against another person or property
– Possess ten or more firearms
Consideration |
Details |
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Explosive Substance |
Not explicitly defined in Penal Law; courts interpret it based on common understanding (e.g. People v. Cruz) |
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Presumption of Unlawful Intent |
Possession without a license under Penal Law § 265.15(4) suggests intent to use unlawfully, but the jury is not required to infer it |
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Operability |
Firearms must be capable of discharging ammunition; the defendant’s awareness of this is not required |
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Firearm Definition |
Penal Law §265.00(3) includes pistols, revolvers, short-barreled shotguns/rifles, modified weapons under 26 inches, and assault weapons |
Key Considerations for Criminal Possession
Definition of “explosive substance”
While the Penal Law does not explicitly define “explosive substance,” courts have interpreted it according to its common understanding, for instance, in People v. Cruz, the Court of Appeals stated that terms like “explosive substance” are “susceptible of reasonable application in accordance with the common understanding of men”
Presumption of Unlawful intent
Under penal Law § 265.15(4), possession of an explosive substance by an individual who is not licensed or authorized to possess it serves as presumptive evidence of intent to use it unlawfully against another person or property. This means that if the prosecution establishes knowing possession of an explosive substance without proper authorization, the jury may infer unlawful intent, though they are not required to do so.
Operability
The firearms in question must be operable, and capable of discharging ammunition. However, the defendant’s knowledge of the operability is not a requisite for possession charges.
Definition of “Firearm”
Per Penal Law §265.00(3), a “firearm” includes:
– Any pistol or revolver
– A shotgun with one or more barrels less than 18 inches in length
– A rifle with one or more barrels less than 16 inches in length
– Any weapon made from a shotgun or rifle that has been modified to have an overall length of less than 26 inches
– An assault weapon
It should be noted Antique firearms fall under specific exceptions.
Example
John Doe is found in a storage unit with 12 unregistered handguns. The police were tipped off about suspicious activities at the unit. During the investigation, john admitted that he was holding the guns for a friend but knew they were intended to be sold on the black market. This scenario could lead to charges under NYPL § 265.04 due to the possession of more than ten firearms.
Possible Legal Defenses of Criminal Gun Possession
Unlawful Search and Seizure as a Defense
The Fourth Amendment of the U.S. Constitution safeguards individuals against unreasonable searches and seizures. If law enforcement officers obtain evidence through a search that violates these constitutional protections, such evidence may be suppressed, rendering it inadmissible in court. This includes lacking probable cause to believe that a crime was being committed. Additionally, even with a warrant, if law enforcement exceeds the scope of the warrant or conducts the search in an unreasonable manner, it could constitute a violation of the Fourth Amendment.
Duress
The defense of duress involves a situation where an individual commits a criminal act because they are coerced by the threat of imminent physical harm or death. Under NYPL §40.00, duress can be a valid defense if the defendant engaged in unlawful conduct because they were compelled to do so by the use or threatened imminent use of unlawful physical force upon them or a third person, which a person of reasonable firmness in their situation would have been unable to resist.
Penalties
Incarceration
A prison sentence ranging from a minimum of 5 years to a maximum of 25 years. For individuals with a prior felony conviction, the minimum sentence increases to 10 years
Fines
A fine of up to $30,000 may be imposed.
The designation of this offense as a violent felony underscores the severity with which New York State addresses crimes involving the possession of explosives with unlawful intent or the accumulation of multiple firearms. This classification not only influences sentencing but also affects parole eligibility and future interactions with the criminal justice system.
Defend Your Rights Today
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